No. 14260 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THOMAS A. DOOLING, et al., 

Plaintiffs and Appellants, 

CHARLES PERRY, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

Thomas A. Dooling, Dillon, Montana 

For Respondents: 

Poore, Roth, Robischon and Robinson, Butte, Montana 

Henningsen, Purcell and Genzberger, Butte, Montana 

Submitted on briefs: July 11, 1979 

~ecided : AUG 1 3 1979 

Filed: AUG 13 1g.9 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Plaintiffs Thomas and Margaret Dooling appeal from a 

summary judgment entered in favor of the defendants Streeter 

Brothers Insurance and Travelers Insurance Company (Travelers). 

The summary judgment was entered by the District Court, Fifth 

Judicial District, Beaverhead County, the Honorable Gordon R. 

Bennett presiding. 

Thomas Dooling, an attorney, prepared a contract, dated 

October 4, 1975, to be executed by Charles E. Perry, d/b/a 

Perry Enterprises, a house-moving contractor. The contract 

provided for Perry to move a large log building from Jackson, 

Montana, to a new location in Beaverhead County approximately 

40 miles distant. The original draft of the contract called 

for Perry to begin work on or about October 1, 1975. By 

interlineation, the date was amended to read October 13, 

1975. 

Paragraph 5 of the Dooling-Perry contract required 

Perry to (1) procure hazard insurance for the period of the 

move in an amount not less than $100,000; (2) pay the premiums 

thereon; and, (3) furnish Doolings with satisfactory proof 

of such coverage. Paragraph 10 of the Dooling-Perry contract 

required Perry to complete performance by November 27, 1975. 

Perry's work was not started by October 13, 1975, and 

in fact was not completed by July 6, 1976. 

Doolings received a letter from Streeter Brothers on 

December 1, 1975, confirming a transportation policy with 

Travelers. The letter lists Perry as the named insured and the 

Doolings as the additional insureds. The text of the letter 

reads as follows: 
"Dec. 1, 1975 

"Dear Mr. Dooling: 

"This letter is confirmation of coverage with the 

Travelers Ins. Co. per our telephone conversation, 

for the transportation policy. 

"Named Insured: Charles Perry - dba 

Perry Enterprises, 

Livingston, Mont. 

"Effective: 12/1/75 - Premium $2,000 

"Add'l insured: Tom Dooling, Dillon, MT. 

"Coverages: split in two sections: 

"$20,000 - 30 x 30') $100,000 

" 8O,OOO - 60' x 46') 

"Meeting all requirements, excluding 

earthquake. (Per contract) 

"Deductible: $1,000 

"Very truly yours, 

"STREETER BROS., Inc. 

"By: /s/ Richard L. Hall 

"Richard L. Hall" 

Pursuant to this letter, Travelers issued a hazard insurance 

policy to Perry. The policy lists "Charles R. Perry and Elsie 

H. Perry, d/b/a Perry Enterprises" as the named insured and 

Doolings as a loss-payees. The policy was effective from December 

1, 1975 to March 15, 1976, a total of 105 days. 

Although Doolings alleged that the log structure was damaged 

by collision or upset, which would have been within the coverage 

of the insurance policy, the Doolings refused at the summary 

judgment hearing to supply the District Court with a information "1 

as to the time of damage. 

The original complaint contained a breach of contract action 

against Perry as a sole dependent. On December 2, 1976, Doolings 

filed an amended complaint adding Streeter Brothers and Travelers 

as defendants. Doolings claimed both Streeter Brothers and Travelers 

were negligent in (1) failing to provide the insurance coverage 

specified in the Dooling-Perry contract; (2) in failing to notify 

the Doolings of the expiration date by supplying them with a 
copy of the insurance contract; and (3) in issuing the policy 

after the casualty occurred. 

Streeter Brothers and Travelers each filed a motion for 

summary judgment, and on December 29, 1977, the District 

Court issued an order granting summary judgments in favor of 

these defendants. The District Court could not ascertain any 

duty in contract or in tort running from either Streeter 

Brothers or Travelers to Doolings. 

The only question presented for review is whether there 

is any genuine issue of material fact which would preclude 

summary judgment in favor of either Streeter Brothers or 

Travelers. 

In their first claim of negligence, Doolings claimed 

Streeter Brothers and Travelers were negligent in not issuing 

a policy that conforms to the Dooling-Perry contract. 

This contention is without merit. The insurance policy 

issued is in the amount required by the Dooling-Perry contract. 

Similarly, the policy issued covers all the perils contemplated 

by the Dooling-Perry contract. 

Moreover, the Dooling-Perry contract contemplates performance within 45 days. The policy issued covers a period of 

105 days. It would be absurd to hold either Streeter Brothers 

or Travelers negligent in not issuing a policy specifically 

covering the period of October 13, 1975 to November 27, 1975, 

the date contained in the Dooling-Perry contract. If this were 

the case, Perry would have paid premiums for no coverage at all. 

Perry did not begin performance by October 13, 1975, as originally 

contemplated by the Dooling-Perry contract. 

Doolings secondly claimed Travelers was negligent in failing 

to notify the Doolings of the expiration date by supplying them 

with a copy of the insurance contract. 

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For an understanding of this issue, it is necessary to 

consider the state of the pleadings before the District Court 

at the time of summary judgment. In their fifth pleaded claim, 

the plaintiffs contended that Travelers "negligently failed to 

provide the insurance coverage specified in the [Dooling-Perry] 

contract" and bargained for by Perry with Streeter Brothers. 

In their sixth pleaded claim, the plaintiffs claimed a verbal 

binder agreement that required Travelers to issue the "casualty 

insurance bargained for," and that Travelers did not issue the 

policy until after the casualty occurred. 

As we have indicated above, the policy issued by Travelers 

does in fact provide the coverage bargained for between the 

Doolings and Perry in their written contract. The policy term is 

for 105 days, which is far more than the 45 days specified in the 

Dooling-Perry contract. The Doolings, therefore fail in 

their contention that Travelers was negligent in not issuing 

a policy specified in the Dooling-Perry contract. 

There is no proof in the record (and it was plaintiffs' 

duty to supply such proof) of a verbal binder agreement. 

Instead, we have a written binder agreement which we have 

quoted above. The written binder does not mention a termination 

date, but since it was written to conform with the DoolingPerry contract, there is no basis to assume any term longer 

than the March 15, 1976 expiration date was required or 

agreed upon at the time of the issuance of the written 

binder. 

Section 35-15-42, MCA,does require an insurance carrier 

to issue a copy of its policy to those with an insurable 

interest as specified in the statute. Conceivably, Travelers 

had a duty to issue a copy of its policy here to the Doolings 

What is missing in this record, however, is any showing by the 

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Doolings that the failure of Travelers to issue a copy of 

the policy to them materially affected their right of recovery 

against Travelers or Streeter Brothers. The Doolings refused to 

inform the District Court when the mishap which damaged the 

log structure occurred. If it happened after March 15, 1976, 

beyond the expiration date of Travelers' policy, Doolings 

would have no right to recover against Travelers or Streeter 

Brothers unless Doolings were prepared to prove some agreement 

with them outside the insurance policy and outside the written 

binder. In that case, the action should have been for reformation, 

and breach of the reformed contract, rather than for negligence 

in failing to issue a copy of the insurance contract. Although 

the District Court extended the opportunity to the Doolings, 

they did not show or offer to show that a genuine issue of 

material fact existed which hinged on the nondelivery of a 

copy of the insurance policy. Rule 56, Mont.R.Civ.P., contemplates 

only issues of material fact. If the fact issue is not material 

to the claim or defense, the District Court has no authority 

under the rule but to order summary judgment as a matter of law. 

If the casualty to the log structure occurred before 

March 16, 1976, a different situation would obtain. Coverage 

under the policy might possibly exist. It was for this reason 

that the District Court strove to ascertain from Doolings when 

the damage happened, or whether Doolings intended to prove the 

insurance contract was open-ended as to time. Although Doolings 

stated they intended to prove open-endedness, they put forth no 

showing, by testimony, discovery, or otherwise, that a material 

fact issue existed on this point. It was incumbent upon them to 

do so. The District Court had little choice but to hold against 

the Doolings on this contention. 

Finally, the Doolings claimed Travelers was negligent in 

issuing the policy after the casualty occurred. This claim is 

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also without merit. The policy issued conforms to the contract 

it was extended to cover, regardless of its issue date. 

While the initial burden of proof upon a motion for 

summary judgment attaches to the movant, that burden shifts 

where the record discloses no genuine issue of material fact. 

Under these circumstances, the party opposing the motion must 

present facts in proper form raising the issue, see National 

Gypsum Co. v. Johnson (1979), Mont . , 595 P.2d 1188, 

36 St.Rep. 1033; Harland v. Anderson (1976), 169 Mont. 447, 

451, 548 P.2d 613, 615. 

A District Court is under no duty to anticipate later proof 

to establish a genuine issue of material fact. Taylor v. 

Anaconda Federal Credit Union (1976), 170 Mont. 51, 550 

P.2d 151. 

Streeter Brothers and Travelers were entitled to judgment 

as a matter of law, and the District Court properly granted 

their respective motions for summary judgment. 

Plaintiffs' cause of action remains for decision as to 

the defendant Perry. The judgment as to Streeter Brothers 

and Travelers is final and properly appealable, since the 

District Court directed entry of final judgment for them 

under Rule 54(b), M0nt.R.Civ.P. 

Affirmed. 

We Concur: 

Chief Justice 

Justice 

L' Justices I -7-